Public Bill Committee

[Sir Nicholas Winterton in the Chair]

Further written evidence to be reported to the House

CJ&I 376 The right hon. David Hanson, MP
CJ&I 377 Dr. M.J. and Mrs. H.S. Gould
CJ&I 378 Gender Identity Research and Education Society
CJ&I 380 David Skinner

Nicholas Winterton: I welcome those Members who are here to the seventh sitting of the Criminal Justice and Immigration Public Bill Committee. We have made some progress. I call, yet again, the hon. Member for Somerset—no, Somerton and Frome to move the amendment.

Schedule 1

Further provisions about youth rehabilitation orders

David Heath: I beg to move amendment No. 121, in schedule 1, page 105, line 27, leave out paragraph 35.

Nicholas Winterton: With this it will be convenient to discuss the following amendments: No. 134, in schedule 2, page 106, line 40, leave out paragraphs 3 and 4.
No. 122, in schedule 2, page 108, line 5, leave out from beginning to ‘before’ in line 8.
No. 123, in schedule 2, page 108, leave out lines 18 to 27 and insert—
‘(4A) Where the offender does not appear in answer to a summons issued under this paragraph, the appropriate court may issue a warrant for his or her arrest.’.
No. 130, in schedule 2, page 108, line 29, at end insert—
‘(za) a youth rehabilitation order is still in force, and’.
No. 131, in schedule 2, page 108, line 36, leave out from ‘ways’ to end of line 37.
No. 124, in schedule 2, page 109, leave out lines 1 to 4 and insert—
‘(ba) if the youth rehabilitation order was made by a magistrates’ court, by dealing with the offender, for the offence in respect of which the order was made, in any way in which the court could have dealt with the offender for that offence (had the offender been before the court to be dealt with for it); or
(bb) if the youth rehabilitation order was made in the Crown Court, by committing the young offender in custody or releasing him on bail until he can be brought before, or appear before, the Crown Court.’.
No. 125, in schedule 2, page 109, line 4, at end insert—
‘(2A) Where the court deals with the offender under the previous sub-paragraph, it must send to the Crown Court—
(a) a certificate signed by a justice of the peace certifying that the offender has failed to comply with the youth rehabilitation order in the respect certified in the certificate; and
(b) such other particulars as may be desirable.
(2B) Such a certificate purporting to be so signed is admissable as evidence of the failure before the Crown Court.’.
No. 128, in schedule 2, page 109, line 44, leave out sub-paragraphs (12) to (15).
No. 126, in schedule 2, page 110, line 27, leave out paragraph 7.
No. 132, in schedule 2, page 111, line 2, at end insert—
‘(za) a youth rehabilitation order is still in force, and’.
No. 127, in schedule 2, page 111, leave out line 4 and insert ‘paragraph 6, and’.
No. 133, in schedule 2, page 111, line 9, leave out from ‘ways’ to end of line 10.
No. 129, in schedule 2, page 112, line 10, leave out sub-paragraphs (11) to (14).

David Heath: Good morning, Sir Nicholas. It is rare that any Member of the House gets both parts of my constituency’s name right. I regret that despite your correct strictures—your strictures are always absolutely correct—the Government are still in the dark. It is a great shame, but no doubt the lights will eventually be repaired.
This is a substantial group of amendments. Although they all cover the same broad area—breach of youth rehabilitation orders—they can be grouped into four subsidiary topics. I shall deal first with amendments Nos. 121 to 127, which deal with the venue for hearing breaches of rehabilitation orders. Such orders will be made in the magistrates court, but on breach the case is to be returned to the Crown court. Now, if the young person is aged under 18 the case will be returned to a youth court; and for an adult over the age of 18 it will be returned to the magistrates court. However, there is a lack of discretion in the Bill’s provisions, which requires that a breach be returned automatically to the Crown court. For a number of reasons, there are question marks against that procedure.
A breach may take many forms. It may be a deliberate breach, with the young person simply not being prepared to accept the terms of the order; but it might be what I would consider an inadvertent or an incompetent breach, at a much lower level of culpability. The advice that I have received—again, I pay tribute to the Standing Committee for Youth Justice for its help—is that a young person on a standard six-month supervision order might have kept 90 per cent. of his or her appointments but still be in breach because of a third unacceptable failure to attend an appointment. There may have been no intent not to comply with the order, but a third failure to make an appointment during that period would result in the young person coming before a Crown court.
There are a number of problems with that. First, in administrative and resource terms, it does not entirely make sense for what one might consider to be relatively trivial breaches to be heard by a Crown court, with all the expense that that entails. Crown courts are significantly more expensive venues for hearing such cases than the youth court would be. Secondly, a Crown court is essentially an adult court, and it could be argued that a young person in such circumstances should not be put before a Crown court unless there was a clear need to do so.

Alun Michael: I am following the hon. Gentleman’s argument with some interest, but the word that he seeks to remove is “may” not “shall”.

David Heath: The concern is that there is no provision for the breach to be heard before a youth court.
If the Minister wishes to correct me, I am happy to take his assurances. I would be delighted, as it would mean that the concerns raised by the Standing Committee for Youth Justice would not have a bearing on the Bill.

David Hanson: I hope that I can reassure the hon. Gentleman and save him those concerns. If the Crown court makes the youth rehabilitation order, paragraph 35 of schedule 1 gives it the power to refer further proceedings to the youth court. If the youth court itself makes the order, it will deal with the breach.

David Heath: I am most grateful for that clarification.

Alun Michael: My point is fairly basic, in terms of the way that the courts deal with things. Often, one of the great problems when dealing with a breach is that all the events surrounding the original decision may not be appreciated. It seems sensible to allow a direction that a breach should come back in front of the more senior court, because that indicates what the court in taking the original decision would regard as the seriousness of a breach. Often such things become lost in the legal system, and surely all that the wording in paragraph 35 means is that the court may take that sort of decision in light of all the circumstances that are before it in making the original order.

David Heath: I do not disagree with the right hon. Gentleman. The most important thing is that the breach is heard in context, which enables a proportionate response to be made. If the Minister assures me that that will be the case, I am happy to move on to other amendments.

David Hanson: The hon. Gentleman will see that the point he mentioned is covered on page 105, paragraph 35(1). I hope that he will reflect on that as he continues.

David Heath: I shall certainly do so, and during the Minister’s response I will consider whether I wish to proceed with the amendments in light of what he has said.

Edward Garnier: In part following on from what the right hon. Member for Cardiff, South and Penarth said, when I have dealt with community sentences that have come before the Crown court for breach, it is frustrating that often one has been required to remit the case back to the magistrates court, which creates a delay in the justice system. I should like to see a degree of flexibility that would allow the court that is seized of the matter to deal with it, rather than having to wait for further proceedings in another court.
The longer such community sentences go on, and, particularly in youth cases, the longer that there is a distance between the offence, the breach and the disposal of the case, the more difficult they become to deal with. I do not want to anticipate what my hon. Friend the Member for Enfield, Southgate has to say, but I would welcome an efficient and reasonably speedy way of dealing with that type of problem.

David Heath: The hon. and learned Gentleman is absolutely right. My intention in agreeing to table the amendments was to find the most expedient way of getting these matters before a court, at the right level, without undue delay or expense, and without escalating a matter that can be dealt with at a lower level. He is right that one of the silliest things would be to put it up to a higher level in order for it to be referred back down again. That would be a waste of resources within the judicial system and one that I hope we will all try to avoid, if possible.

Alun Michael: The hon. and learned Member for Harborough has rightly said that the timeliness is extremely important. Two things are important in disposals: timeliness and appropriateness. Balancing those two is quite difficult, but the clause does it. That is something that we should bear in mind when considering amendments and clauses as we go through the Bill.

David Heath: Happily, we are all in agreement. It is simply a matter of ensuring that we are all satisfied that the clause does what we have agreed. I do not think that there is any difference in terms of what we are trying to do.
Amendment No. 134 was tabled by myself and my hon. Friend the Member for Cambridge and has received the support of the Conservative Front Benchers. Again, this matter was raised by the Standing Committee for Youth Justice. It deals with the statutory arrangements for dealing with breaches of compliance.
The Bill describes the circumstances under which the responsible officer must issue warnings and initiate breach proceedings. It becomes a statutory duty to deal with a breach and there is no discretion on the part of the practitioner or manager at local level. That flies in the face of good practice. Quite a body of good practice has been built up over the years, which suggests that a degree of discretion and flexibility in dealing with young people is often advantageous. That is not to say that there should be a soft touch or that breaches should be ignored. Breaches are very important and it is essential that they are dealt with effectively. However, the effective way of dealing with a breach might be not to escalate it to the point of a formal breach.

Alun Michael: I am drawing on experience in two fields. One is in terms of sentencing during my time as a juvenile magistrate and the other is from working with young offenders.
Surely the hon. Gentleman is arguing that a breach should be ignored. The schedule states:
“If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with a youth rehabilitation order”.
Therefore, there is an opportunity for a discussion to look at any excuses and to see if there is a reason that obstructed compliance with the order. Surely the hon. Gentleman is wrong in saying that the effect of this amendment is not to excuse breaches. If you remove that paragraph, it would ignore them. I think that he has missed the point of this proposal.

David Heath: With the greatest respect, I do not think that I have. For instance, if a national bus strike that a young person is unaware of prevents him from keeping an appointment, that would come into the category of reasonable excuses. However, there should also be a level of discretion on the part of someone who is managing a case in assessing the overall willingness of a young person to make strenuous efforts to comply with an order. I think that a margin of discretion is of value. Even if there is no reasonable excuse, a breach could be talked through with the young person in order to discover the reasons and take appropriate action. In terms of good practice, I do not entirely agree with what the right hon. Gentleman is saying.

Alun Michael: Where does the schedule fetter the discretion of the supervising officer in deciding what amounts to a reasonable excuse? It might be family circumstances; it might be the development that the young person has made; it might be that he has attended a variety of things and that the breach is one little example of failure. As I read it, the schedule does not fetter the discretion of the supervising officer to act responsibly, but it does place a requirement on him to make a judgment. That is surely right.

David Heath: I am sorry, but I simply disagree with the right hon. Gentleman. I think that it does fetter the discretion of the manager of the case.

Alun Michael: It causes him to think.

David Heath: It does not just cause him to think. It causes him to make an assessment, in the same terms that the court would, of whether an excuse was reasonable or not. If it is not a reasonable excuse, he or she is required to take the appropriate action by statute. There may be circumstances in the good management of individual cases in which an excuse for a particular breach is not reasonable, nevertheless it is not appropriate to move to breach proceedings. That is the discretion that should be built into good practice, and certainly into management guidelines, but not constrained by statute. That is a perfectly proper disagreement between us. No matter how many times the right hon. Gentleman repeats his point, he will not change my view, but I am happy to let him try again.

Alun Michael: I am not going to repeat myself. I want to invite the hon. Gentleman to give us an example.

David Heath: One of the key parts of managing people with chaotic lifestyles is to establish a good working relationship with them to help them manage the way they conduct themselves in their everyday life. For example, a person who has strenuously attempted to comply with all the terms of the order may, one day, oversleep. That is not a reasonable excuse for not turning up to an appointment. No court is going to say, “So, Mr. X, Master X, young X, you overslept, did you, and you expect this court to take that as a reasonable excuse for you not meeting your appointment?” Of course it will not. However, a reasonable manager might say, “It is not acceptable. Get yourself an alarm clock and sort yourself out.” They will not consider it to be a breach of the order.

Alun Michael: Sounds like a warning to me.

David Heath: The right hon. Gentleman says from a sedentary position that it is a warning. He would move directly to the hierarchy of breach measures that are set out in the Bill. Under the circumstances that I have outlined, I would not. I would hope to be establishing a better relationship with the young person, and would not be entirely bound by the letter of the order but rather by the outcome of improving the person’s lifestyle and a hope that the supervision will have the desired effect. We must simply disagree. The right hon. Gentleman would be a harder taskmaster than I would be under those circumstances. There are practitioners around the country who are quite capable of using discretion. That does not make them a soft touch, but an effective manager of the young person. That is what amendment No. 134 seeks to do.
Amendments Nos. 130 to 133 originate from the Standing Committee for Youth Justice and are amendments to which Conservative Members have added their names. Again, they allow a discretion to the court. That discretion, which covers a breach of community orders in the first place, already exists, but is removed by the current provisions. If a court is convinced that it is in the interest of maintaining a young person’s progress towards the path of not reoffending, discretion effectively allows it to take no action other than issuing a warning, or perhaps guidance to the young person in the context of a breach.
The right hon. Gentleman may have decided that he has intervened enough on me, but I anticipate that he would say that he would not do that and that he would always take action—
 Alun Michael indicated dissent.

David Heath: No, he is not. He takes a different view on this.

Alun Michael: The hon. Gentleman wishes to provoke me. My wish is not to be unreasonable, but to set clear boundaries so that young offenders know exactly where those boundaries are. The distinction, I suggest to the hon. Gentleman, is between the reasonable and the woolly.

David Heath: I would say that it is between the constructive and the inflexible.

Nicholas Winterton: Order. I wonder whether the right hon. Member for Cardiff, South and Penarth is referring to the image of the hon. Member for Somerton and Frome and describing him as woolly.

Alun Michael: On a point of order, Sir Nicholas—one provoked by the Chair. The hon. Gentleman’s appearance is attractively woolly, but some of his thinking is unfortunately woolly.

Nicholas Winterton: I had hoped that my intervention, which was quite wrong, would not generate any response. Mr. David Heath, please continue with your speech.

David Heath: I am most grateful, Sir Nicholas, but being barracked from the Chair really is—[ Interruption. ] As has been pointed out, my constituency has now at least been referred to correctly, so let us look on the bright side—and this, literally, is the bright side.
Let me, however, return to the very important amendments before the Committee, which simply allow the court the discretion to take no action, and the right hon. Gentleman agrees with that in this instance. Instead, the court can set appropriate boundaries by means of warnings, if that is the appropriate disposal in the particular circumstances described in submissions to the court.
Amendments Nos. 128 and 129 deal with the question of proportionality on breach. We have discussed whether an intensive supervision and surveillance requirement is appropriate in cases where the original offence would not imply a custodial sentence. The curious thing about the schedule is that a court can impose an intensive supervision and surveillance requirement on breach of an order and, if that requirement is breached, impose a custodial sentence, even if the original offence would not usually receive a custodial sentence.
There is therefore a question of proportionality at one remove. Is the breach of the order sufficient to elevate the original offence to the level of requiring a custodial sentence? There is at least a question mark as to whether that is appropriate. I understand why the Minister would want a strong sanction against those who breach an order, but considered in the round, it would seem disproportionate for a young person who has committed a relatively minor offence—one that would not usually attract a custodial sentence—to find themselves in prison simply because the process of order and then breach brought them back before the courts. I therefore ask the Minister to consider whether that is his intention.

David Hanson: The schedule contains the words
“wilfully and persistently failed to comply”,
which I understand to mean that the behaviour is wilful and persistent. The custody element is there at the end of the process to deal with somebody who wilfully and persistently refuses to comply with the order. Does the hon. Gentleman believe that the courts should simply ignore such behaviour, or should the custody be there to prevent such a wilful and consistent failure to comply?

David Heath: I entirely understand the Minister of State’s point, but the question is about whether custody is the right sanction for a wilful breach of an order in respect of a non-custodial offence. That is something that the Committee should explore. The Minister believes it to be right, and in the case of an adult I have no doubt that it is correct as we have parallel provisions within the adult criminal system. However, I question whether this is the right disposal when compared with other similar measures.
There are clear disposals within the rehabilitation order that do not put someone in a young offender’s institution or a prison, but which still take them out of their environment. We have, for example, the intensive fostering requirement, which the Minister of State has argued very strongly in favour of. Perhaps we should consider whether those are better provisions than effectively admitting defeat and saying that the young person should end up in prison.
It is an arguable case, and I would be interested to hear what other members of the Committee feel on the matter and in particular how the Minister justifies it. I expect that he will do so on the grounds that he has just used, and claim that there is no other sanction available and that this is the end of the road.

David Hanson: It is also there on the grounds of deterrence. The custody option is there to prevent wilful and persistent breaches of the order.

David Heath: That is interesting because if there is one thing that all the evidence clearly shows, it is that short-term imprisonment of young people has no deterrent effect. One only has to look at the rates of recidivism for prisoners released from short-sentences—I stress short—to know that it is an ineffective deterrent. Saying that that acts as a deterrent is an arguable point—there is abundant evidence to suggest that it does not. However, that is an argument for another day.

David Burrowes: Welcome back to the Chair, Sir Nicholas. Hopefully my opening remarks will not be too challenging.
I want to look at the question of discretion, which is the broad theme of the amendments. In previous discussions we have looked at interesting reading material that we may wish to consider further over prorogation. Perhaps I could make one recommendation to the Minister for some bed-time reading. It comes from the Prison Reform Trust “Mitigation: The role of personal factors in sentencing” and uses research from Jessica Jacobson and Michael Hough.
I would like to draw the Minister’s attention to page 56 which deals with the sentencers’ responses to policy developments and is relevant to our discussions. The report highlights the need to consider the sentencers, who are at the forefront of the legislation that will be enacted and who will then have to implement it. They are concerned not only about being properly consulted, but also about possible interference in their sentencing. To put the concerns of the judges in context, they feel that the measures may deny the sentencer the capacity to deliver genuine justice. One said that,
“the more judges’ hands are tied, the less justice there is”.
Two judges used almost identical turns of phrase to stress the need for, in their words, “humanity” in sentencing. One commented that judges are encouraged to sentence by following a “kind of mathematical model” in the search for consistency. However, if sentencing takes this approach, in their words,
“you take out of the process any kind of humanity”.
The other judge complained that sentencing policy encourages sentencers to act as “robots” and that it
“should be more to do with educating the bench than tying our hands too much”.
Finally, one judge said:
“If you take away discretion completely, then you end up taking the humanity out of sentencing.”
One of the more vociferous critics said:
“We all resent the ever, ever-encroaching bounds on our discretion in sentencing”.
Well, Sir Nicholas, I would not want to use any intemperate language, but an expletive is then mentioned:
“We are the people looking so”—
expletive—
“silly in court, when we can’t sentence properly because some civil servant has second-guessed us.”
The report makes interesting reading, and it goes on and on. There is an important theme of discretion, which the amendments touch on in different ways. Amendments Nos. 121 to 125, which are tabled in the name of the hon. Member for Somerton and Frome, are well motivated. We all recognise the need to ensure that Crown court appearances for young people are limited because they are not always appropriate. When dealing with minor breaches of order, one would not want to provide more opportunities for youths to come before a Crown court and one wants to reduce costs in relation to Crown court appearances.
I commend the arguments made by the Standing Committee for Youth Justice and the organisations that are part of the Standing Committee. Its concern, in one sense, relates to discretion. It is concerned that the Bill would make it automatic for a youth who breached an order imposed by the Crown court to be returned there, unless the Crown court judge stipulated that the breach could be dealt with by the youth court. The concern of the hon. Member for Somerton and Frome is that matters of minor breaches should be dealt with in the first instance by the youth court, and it is suggested that 90 per cent. of breaches fall within that category.

Alun Michael: The hon. Gentleman seems to be making the same mistake as the hon. Member for Somerton and Frome, unless I am mistaken, which is to think that the clause says “shall” when it says “may”.

David Burrowes: The right hon. Gentleman intervenes too early—I am still setting out the context of the amendment. The theme is discretion, and had he waited, I was to come on to the fact that the Bill does provide for a discretion that does not currently exist. It allows the Crown court judge to direct that such an order be dealt with by the youth court, which I commend. That is why the amendment tabled by the hon. Member for Somerton and Frome would not necessarily bring an improvement in the area of discretion.

Alun Michael: I may have misunderstood this, but I thought that the default setting was for a youth to be dealt with by the youth court, although the judge may direct that a case go to the Crown court.

David Burrowes: The right hon. Gentleman’s helpful intervention allows me to move on to some of the problems with the Bill that the amendment would not deal with. The discretion lies with the Crown court judge, but at the early stage, so he must make a call before any breach has occurred. The judge must decide, based on the nature of the case and the offender, whether he will put within the order a discretion for the youth court to deal with the breach. The concern is whether that discretion should be more devolved and whether it should be dealt with wholly by the decision of the Crown court judge. I would not go along with the amendment because the Crown court judge is dealing with a case that is, naturally, a serious one. For such a case to have come before a Crown court, the offence would be likely to carry a sentence of more than two years’ detention. Naturally, any such case is serious and would only exceptionally be dealt with using a youth rehabilitation order, so we are talking about the exceptional cases that can be dealt with in the community rather than about someone who has been convicted of a serious offence and dealt with by imprisonment. We are concerned that in such cases, the sentencer should have full control of the order and be involved in its enforcement. We therefore welcome paragraph 35, which gives the Crown court discretion and allows it to be involved in the order’s enforcement. Indeed, it could be taken further.
I opened the innings for the Conservatives in the Committee on the draft Community Order (Review by Specified Courts) Order 2007, which enabled courts in a pilot scheme to review orders and be much more involved in their review before they are breached. That proactive involvement was to ensure that the orders were properly complied with before that person went down the road of breaching the order and there being a subsequent sentencing. During discussions on the order, the hon. Member for Cambridge and I were informed that the evaluation of the pilot scheme was due to be published by October, but I have not seen it. The Minister of State gave a clear indication on that, given that we had previously been told that the evaluation would be published by May. We are now coming to the end of October, and he has every opportunity to publish it, so that we can consider it.
The essence of the 2007 order was to allow reviews to take place. When the evaluation is eventually published, after much anticipation, the pilot projects that are making progress in evaluating the orders might well be rolled out not only to local magistrates courts in Haringey and Enfield, but to Crown courts. That is anticipated within the order. However, the very principle behind that proactive involvement is that the sentencer sees the person who received the sentence, who comes back before the court, to check how well they are complying with the sentence and to ensure that compliance continues. The principle within the Bill allows that, but we must allow full discretion.
When it comes to how the Crown courts deal with drug treatment and testing order reviews, it has been said, and I have certainly seen this with clients, how much people have been affected by having to go back before the judge who sentenced them to explain whether they are making progress. That has a significant impact on preventing them from breaching the order and on ensuring that they take it seriously. That should be the case when a Crown court makes a youth rehabilitation order, which would no doubt involve a serious offence.
We are concerned that there should be flexibility and discretion. When a youth breaches an order and is in custody at Edmonton police station, for example, the custody officer often does not know what to do. He calls around trying to find out whether the youth should go to the youth court or the Crown court, but no one is able to give an answer. People look through the different orders and statutes that have been introduced over the years and try to work it all out within the confines of the custody suite. That is often a dilemma for custody officers, and they often make the wrong call. The youth then goes to the wrong cells, has to be transferred and ends up being ping-ponged between Wood Green Crown court and Enfield magistrates court.
Although the amendment does not deal with the proposal, I invite the Minister to consider whether probation officers assigned to young offenders should be able to recommend where breaches are dealt with—in the youth court or the Crown court—provided that a direction has not already been made on venue. That might be particularly appropriate when one is dealing with minor breaches which, as we have heard, might constitute the majority of infractions. There could be an administrative process for reaching a realistic view on whether to deal with a breach in the youth court, although there would obviously need to be liaison with the sentencing judge.

David Heath: The hon. Gentleman makes a persuasive case—even in relation to my own amendments. He is making the same point as me on flexibility but with the further suggestion of a reserve mechanism. It would exactly meet my requirements, as well as those that the Minister has outlined, if there could be an executive decision to put the matter before a youth court, with a report to the Crown court such that the Crown court would always have a calling power to intervene if it so wished.

David Burrowes: I am grateful for the hon. Gentleman’s comments. When considering proposals such as these, it is always important to consider what is happening on the ground. There should be a proper consultation with the people who actually deal with things so that there is appropriate flexibility and discretion. That way, there will be an expeditious process for dealing with cases in the right setting, as we all wish, which nevertheless ensures that justice is done and that there is neither any continued breach nor any reoffending.
The next set of amendments likewise deal with discretion, although in the context of the probation service. Resources are important to that. We should take account of the comments made in the annual report by Her Majesty’s chief inspector of probation, who referred to concerns about overload in the probation service, and to the number of cases per offended manager with which it has to deal. In the words of the chief inspector, Mr. Bridges, that can range from some 25 to 70, with the higher caseloads often being exacerbated by freezing of posts. He has said that
“it is clear to us that when the costs of new work, new requirements and new infrastructure have been taken into account, resources have in practice still not kept pace with the increasing demands”.
The new raft of generic orders might draw on the existing orders, but further requirements are made in the Bill, and it is important to heed Mr. Bridges’ words on behalf of the probation service. He has also said that the new demands include
“new Orders or requirements for drug treatment and testing, for accredited programmes and for managing prolific offenders, extended periods of post-release supervision, increased public protection expectations, enhanced standards of quality for unpaid work and other supervision requirements.”
The probation service is concerned that, despite the increases in resources in recent years, resources might not match demand.
The crucial point is that resources might be directed to the warning and breach processes, rather than primarily on ensuring that young people under the supervision of probation officers are not committing further offences and that the requirements of orders are fulfilled, which is what people want. The particular complaint is that there is too little discretion in relation to breaches, so will the Minister reflect on whether the Bill provides sufficient discretion?
Paragraph 3(1) of schedule 2 states that
“the responsible officer must give the offender a warning”.
They may well give a warning currently, but that is subject to national standards; it is not on a statutory basis. That is the difference: it will be on a statutory basis, under schedule 2, that the warning must be given. That warning would then be a record of non-compliance, and that would go down the route towards breach of proceedings. The fact that it is placed on a statutory basis is key.
The concern is that the measure may tie at least one hand behind the back of a probation officer. The concern is whether the removal of discretion flies in the face in many ways of the proposals to give the probation service quasi-judicial powers in relation to dealing with breaches. On one hand, there is a concern to ensure that, in appropriate cases, breaches can be dealt with away from court and that there is sufficient flexibility, but on the other hand, the proposals in schedule 2 are designed to take away what may well take place under national standards, and put it on a formal, statutory setting. The concern is that when probation officers want to deal with matters flexibly, they may well be precluded from doing so.
One example, to which the Standing Committee referred, is the programme piloted by the Youth Justice Board, which no doubt the Minister supports. It involves a scaled approach that is to be rolled out nationally alongside the youth rehabilitation order. We referred in earlier debates to minor breaches when someone fails to attend an appointment because their alarm clock does not go off at the appropriate time. Probation officers can take part in a buy-back scheme under which young people who are deemed to have failed to attend appointments without a reasonable excuse are given the opportunity to avoid breach action by subsequent compliance. Their later attendance can cancel out earlier failures after designated periods.
That flexible approach is about implementing national standards and it is an effective mechanism. It provides positive motivation for young offenders to ensure that they set the alarm clock and cancel out a minor breach, rather than go through the formal process that would be undertaken under the Bill whereby they must have a warning, and then we are talking about non-compliance and breaches.
With the amendments, we are calling for the discretion that is in the system and needs to be developed through such innovative pilot programmes not to be in any way restricted by what is required on a statutory basis. I invite the Minister to provide evidence for why we have to move to a formal, statutory basis involving mandatory warnings.
The next sub-group of amendments, including amendments Nos. 130, 131 and 133, also relates to the concern that the courts should be able to deal properly with the issue of discretion. The concern is that the Bill will preclude an approach that enables courts, when an offender is before them in relation to a more minor breach, to deal with the case in a reasonable way, to have flexibility, to be allowed, as the Prison Reform Trust document says, to have humanity rather than just acting as a robot, which will be the case if they are told by statute that when an offender comes before them because of a breach, they need to up the scale of the order, impose further requirements, impose a fine.
Sentencers want the freedom to be able to look at the offender before them to take account of the circumstances not only of the breach but of the young person, to enable them, in some circumstances, to take no further action but to ensure, with assurances on the circumstances of the offender, that they will be able to continue with their order with no further penalty. That may be the case for only certain offenders. Others may well need to be given the stick rather than the carrot, but the call from sentencers and others is for the stick and carrot to be in the hands of the sentencer, rather than to be taken away from them and to be only in the hands of the statute. Flexibility should be provided to enable the courts to deal with matters in an appropriate form.
Amendments Nos. 128 and 129 deal with the ISSP. We are all concerned about the number of young offenders and adults in our prisons; the estimate is that 20,000 across the board in the prison estate are in prisons due to sentencing behaviour, which is something that everyone wants to change. The amendments tabled by the hon. Member for Somerton and Frome are designed to ensure that in the hierarchy of sentencing we do not unnecessarily put young people into custody for breaches of the ISSP.
The Minister has constantly used the phrase “wilful and persistent non-compliance” with the order. The reality is that it may well be the case for any sentencer that if someone wilfully and persistently does not comply with an order they have come to the stage where the court has to show that orders need to be complied with and on that basis a custody sentence is the only option available. Obviously, that is in extreme cases and it is important, in response, to emphasise that any order involving intensive surveillance and supervision is made only when an offender is on the cusp of custody.
In present pilot programmes of ISSPs it is available for those cases in which the offender has been through all the levels of community orders and failed to comply and, sadly, the only option left is for a more intensive programme which, if the offender breaches it, may lead to that offender being over the cusp of custody and receiving a period of detention. Although I am with the hon. Member for Somerton and Frome in respect of the motivation of the amendment, I would not support him in regard to its reality.
Finally, I want to reflect on concerns that sentencers generally are increasingly being second-guessed by statute and the need for both them and professionals and probation officers to have the full discretion to achieve the objective that we all seek: that young offenders should be kept out of courts and prisons.

David Hanson: We have had a useful debate and I am grateful to the hon. Members for Somerton and Frome and for Enfield, Southgate for tabling the amendments and speaking to them. I fear that there will be disagreement on some of the issues but I am grateful for the support of the hon. Member for Enfield, Southgate in voicing concerns that I will articulate about some of the amendments tabled by the hon. Member for Somerton and Frome. I hope that at the end of the debate we will have a clearer picture of where we are.
I will first speak to amendment No. 21, which would prevent a Crown court that makes use of a rehabilitation order from directing that any subsequent breach action be dealt with by a youth or magistrates court. I listened to the hon. Gentleman, but I do not agree that the amendment is either desirable or necessary. The hon. Member for Enfield, Southgate will support me in that assertion, if I interpret him correctly. When the Crown court has decided that a youth rehabilitation order is an appropriate sentence, it is wholly appropriate and reasonable for the court to have the power to refer any further proceedings relating to that order to the youth court, because the youth court or magistrates court can, in itself, then deal with those further proceedings accordingly. They have sufficient powers to deal with the breach of the youth rehabilitation order and, of course, the youth court has some modicum of specialist knowledge in dealing with young people. It is a clear preference for me and, I hope for the Committee, that in the circumstances the Crown court should have the power to direct that the youth court should deal with those proceedings that may result in a breach, which also means that there are no burdens on the Crown court in dealing, potentially, with minor breaches.

David Heath: The Minister is making my argument rather than his own. We are not saying that it should not go to the youth court or magistrates court, but that it should always go to the youth court or magistrates court in the first instance before being referred up to the Crown court, rather than going to the Crown court and being referred down.

David Hanson: The amendment would prevent a Crown court that has made a YRO directing that any subsequent breach action be dealt with by the youth court or magistrates court.

David Heath: Only that bit of the amendment.

David Hanson: That is a fairly significant bit of the amendment, as my right hon. Friend the Member for Cardiff, South and Penarth has indicated. My main objection is that that would place an unnecessary burden on the Crown court and limit the flexibility of the higher court to refer cases back to the magistrates court for appropriate action in those circumstances. I thank the hon. Member for Enfield, Southgate for his support for the view that we have taken on that issue.
Amendment No. 134 has also given us an interesting debate. My right hon. Friend the Member for Cardiff, South and Penarth was particularly sparky this morning when challenging the assertions of the hon. Member for Somerton and Frome on those matters, and I am grateful for that support because it exposed some of the arguments that I am sure we will touch on in the debate.
The amendment would remove the provisions in the Bill that set out the breach proceedings to be followed by the responsible officer. Those provisions set a limit of two format warnings that may be issued to a young offender in a twelve month period, following which, on a third breach during that period, proceedings must be instituted. That is a reasonable approach to ensure that young people are formally encouraged through a series of warnings before a third breach in that period, to comply with the order. The provisions reflect the Youth Justice Board’s national standards for breaches and have been put in the Bill specifically to ensure that there is clear evidence that breaches will be pursued rigorously and consistently, with national standards applied on a national basis. The breach procedure will codify the Youth Justice Board’s national standard, which will continue to provide more detailed guidance on managing breaches effectively while retaining the discretion that my right hon. Friend the Member for Cardiff, South and Penarth wishes there to be.

Alun Michael: I endorse what my right hon. Friend is saying. The problem with those sort of tariff ideas is that, although they are meant to guarantee a degree of proportionality, too often they bring about drift. Drift is not clarity, and a lack of clarity is bad for encouraging young offenders out of a pattern of criminal activity.

David Hanson: I thank my right hon. Friend for his intervention and agree with him. I hope that the whole Committee agrees that, if we are to have community sentences that are intended to keep young people out of custody, it is essential that they are meaningful, respected in the community, have some powers for dealing with breaches in a positive way and are codified in a national standard under the guidance of the Youth Justice Board.
We should be determined to ensure that YROs, and indeed all community penalties, are rigorously enforced. I am determined to see them widely used by the courts, accepted by the public and considered robust alternatives to custody. If we do not have those powers to warn or a strong codification of compliance with the orders within the 12-month period, we will undermine that order and, ultimately, the public will regard it as meaningless. The public need to respect the orders, regard them as a penalty and see that they will be enforced. The community at large will want to have some reparation made for the crimes committed against it.

Harry Cohen: I agree with my right hon. Friend that there must be a punishment for a breach of the order, but during the earlier discussion, it struck me that you could have an original youth rehabilitation order with an education requirement as one of its subdivisions; and if the order were breached because, after all the warnings, the youngster would not attend the sessions, he would be taken into custody and he still might not receive any education, owing to the state not providing it when they were in custody. That would be a nonsense, so will my right hon. Friend insist that the state apply the education aspect of the order to the young offender?

David Hanson: There is a mutual responsibility, both to make provision to meet the obligations of the order, and for the individual to undertake and meet those obligations. That is the key aspect. I draw colleagues’ attention to the use of “reasonable” in the legislation before us, because I recognise that, occasionally, young people will find it a challenge to meet some of the basic compliance requirements of the community order, such as being in a certain place at a certain time. If attendance at this Committee were a community order, having commenced at 9 o’clock this morning, some Members may have been breach of it by turning up at 1, 2 or 3 minutes past 9. I was here on time—I managed to do it today—and so were you, Sir Nicholas; but it is possible to turn up slightly late for an appointment. It was reasonable of my hon. Friend the Member for Tooting, the Whip, to exercise his discretion in respect of colleagues who were one or two minutes late today. He has been reasonable about the matter.
The simple point is that there are flexibilities allowing the responsible officer to decide what is reasonable. To use the Committee analogy again, if a Member were due to attend but did not stay for the whole Committee, my hon. Friend the Whip, if he were the responsible officer, might not regard it as reasonable, but he would consider the excuse. There is discretion for local officers to take those points into account. We have set national standards through the Youth Justice Board to provide more detailed guidance, and the key point is what is reasonable and what is unacceptable. However, the bottom line is that in any organisation, such as the Whips Office, or in the operation of a youth rehabilitation order, there must be some discipline and an understanding that at the end of it, action will be taken. Amendment No. 134 would remove that provision, and I support my right hon. Friend the Member for Cardiff, South and Penarth in his challenge.

David Burrowes: I wonder whether the Minister has considered the evidence that NAPO submitted in a letter dated 16 October, highlighting its concerns that, given the way in which it had been consulted, there had been insufficient time for it to consider matters in detail. It is also concerned about breaches. It said that
“one of the reasons why the prison population is growing disproportionately is because of increasingly strict interpretations of breach procedures within the Probation Service and the Courts.”
Its general concern was about the need to exercise appropriate discretion.

David Hanson: I have seen NAPO’s evidence and discussed those concerns with its representatives in meetings. The my hon. Friend the Under-Secretary of State for Justice was at NAPO’s annual conference in Scarborough on Friday discussing similar matters. The hon. Gentleman knows that some 4,500 individuals are in prison as a result of licence breaches. Again, there should be flexibility and discretion, and we are discussing those matters with NAPO, because reasonableness must be built into the system. I trust local officials to make those decisions, based on national standards. As my right hon. Friend the Member for Cardiff, South and Penarth said, we need some element of understanding that in the event of persistent breaches, action will be taken. I am satisfied that there are sufficient safeguards to avoid returning young offenders to court for minor infringements, because it is right and appropriate that the clear standards set out in the Bill are examined, and that discretion is used at a local level.
On probation, the hon. Member for Enfield, Southgate discussed some of the pressures on the probation service. I have discussed the concerns about those pressures with Andrew Bridges, following the production of his annual report earlier this year. Obviously, there are resource implications arising from a number of matters, and there are pressures on resources at all times. I must say to the hon. Gentleman that resources provided for the probation service have increased by some 72 per cent. since 1997, which is well ahead of inflation. I accept that the demands on the probation service have also risen in that time, but I believe that there is scope within the funding elements that we have to ensure that we can meet the needs of the probation service for the future.
Amendments Nos. 122 to 127, 130 and 132 would limit breach proceedings to the specific type of court that sentenced the young offender to a youth rehabilitation order. For example, where a Crown court has sentenced the young offender to a YRO, it is appropriate and sensible for the Crown court to have the power to refer that breach back to the youth court, for the reasons that I mentioned earlier. The reasons why we have given the Crown court such power is that it would be disproportionate in every instance for the case to be retained at Crown court. Indeed, it would also impose a burden on that higher court when, in fact, youth courts have expertise in dealing with young people. If the Crown court decides to refer the matter to a youth court, I believe that it should have the power to do so and I cannot see a problem with that particular issue.
Amendments Nos. 131 and 133 would completely remove the measures in the Bill that would require a court to impose a specified penalty on a young offender who is found to have breached their YRO while it was still in force. Again, we return to a general point, which is that it is essential that community sentences are subject to rigorous enforcement when breaches occur, and that the action that is taken is appropriate.
The point has been made about sentencer freedom to decide the appropriate punishments that should apply, but it is necessary that the Government set some national standards and give a clear indication of what measures should apply, to help build confidence in the community. The measures that would be removed by amendments Nos. 131 and 133 are, in fact, trying to achieve that aim; they are designed to give some indication of what the sanctions would be in the event of the young offender breaching their rehabilitation order. The measures are about building public confidence, including public confidence in the courts, and it is right and appropriate that we set baselines in the Bill for dealing effectively with those national standards.
Amendments Nos. 128 and 129 would remove the court’s power to deal effectively and robustly with persistent and wilful breaches of the YRO. Under the Bill, when a young offender wilfully and persistently breaches their YRO, the court is able to impose a YRO with intensive supervision and surveillance, without the need to meet the custody threshold. If the young offender is already on a YRO with intensive supervision and surveillance, imposed as an alternative to custody where the offence was imprisonable, the courts have the power to order custody for wilful and persistent breaches.
Where the original offence was not imprisonable, custody is only available in certain circumstances. I come back to the phrase that we have used a couple of times today: “wilful and persistent”. There must be a wilful and persistent breach of the first YRO. The court can then impose a YRO with intensive supervision and surveillance because of that persistent and wilful breach. Custody is not available at this point if the original offence was not imprisonable. However, I believe that, if the young offender has wilfully and persistently breached that YRO with the intensive supervision and surveillance provision, custody must be available to the court both for the deterrent effect and to allow punishment.
I am grateful for what I interpreted as the support of the hon. Member for Enfield, Southgate for that approach. Like him, like the hon. Member for Somerton and Frome, and I suspect like every member of this Committee, I do not wish to see young people sent to custody for no good reason. However, there must be some national standards—there must be some bottom line or baseline. If there is an original order and a supervision and surveillance order, and if there are persistent and continual breaches and the court finds them to be wilful, it is entirely appropriate that the custody option should be available at that stage to the court, to use at its discretion, because such breaches will be seen as a snub to the court and to the penalty imposed. It is essential for the orders’ integrity that we have robust enforcement options to deal with wilful and persistent breaches.
I hope that my hon. Friend the Member for Leyton and Wanstead understands that the measures will not be used on those who turn up five minutes late, or cannot meet the obligations in an order because the state has not provided some element of it. They will not be used for minor infringements; they will be used for wilful and persistent breaches—for worst cases in which a young offender is clearly challenging the court.

Harry Cohen: I agree with that, and my hon. Friend makes a good point, but when the state takes control and puts a youngster into custody, it also takes responsibility for fulfilling the conditions of the youngster’s YRO. I gave the example of an education order. That education must be provided by the state. That is what I take issue with.

David Hanson: I do not believe that any court would say to an offender that they were wilfully and persistently not achieving an order’s objective because the state itself had not provided the mechanisms to achieve it, whether through courses or other provided activities. I hope that my hon. Friend accepts that assurance.

David Howarth: I do not think that that was the point that the hon. Member for Leyton and Wanstead was making. It is not about whether that would constitute a breach. What he was saying—it is an excellent point—is that the responsibility for ensuring that the purposes of an education order, for example, are fulfilled will shift to the state if the young person is taken into custody. The state’s obligation is to ensure that education is available. He is making the point that unfortunately, it is frequently not available.

David Hanson: In the event of a custodial sentence for wilful and persistent breaches over time, I hope that provision of education or any other requirement would continue in custody. That is important.
We are straying into separate territories, but my view is that we must raise the level of support for young people in custody with education, training and a range of provision. When visiting establishments for young offenders, I have been impressed by some of the education work going on. The purpose of custody, like that of community orders, is ultimately to prevent reoffending. Education is one of the best ways to do that. As hon. Members know, improving numeracy and literacy is key to preventing reoffending. Offenders under 16 sentenced to custody continue to receive education while in custody. We must ensure that it is the best that we can supply, so that we improve their literacy and numeracy and help them to overcome the challenging behaviour that lead to offending in the first place.
You will have gathered from my comments, Sir Nicholas, that I hope that the hon. Members for Somerton and Frome and for Enfield, Southgate will not press their amendments. I believe that the Bill supplies a framework for enforcing existing national standards through the Youth Justice Board, provides community confidence in community sentences and ensures that we have a backstop by stating that where there are persistent breaches, the Government, through the courts, will take action to enforce sentences properly. The sole intention is ultimately to keep people out of custody, but we will have the option of custody if people wilfully and deliberately breach court orders and associated regulations. I hope that that is helpful to hon. Members, and I urge the hon. Gentlemen not to press the amendments.

David Heath: We learned several interesting things from that valuable debate. We learned that the engagement of the more poikilothermic members of the Committee is directly proportional to the temperature. We had an excursion into the practices of the Government Whip and his light-touch approach to members of the Committee. I thought that that example amply illustrated my point. It is precisely because the Government Whip is not bound by statute in his dealings with errant members of the Committee that he has discretion to use his undoubted intelligence and common sense to deal appropriately with the abundant shortcomings of his colleagues. That is precisely what I was suggesting might be appropriate for probation officers: they should have the same level of discretion to use their intelligence, common sense and professional training when dealing with troublesome youngsters.
I am not suggesting that probation officers do not have a palette of sanctions available, or that there should be no sanctions for breach of a community order. Of course there should be, and they should be clearly set out. But discretion on the part of the practitioner is a crucial element of applying sanctions sensibly. That is what I was seeking to ensure, but the Minister argued against it.
I have to say that the focus of the Minister’s argument on the first group of amendments was directly in opposition to what the amendments were intended to achieve. He addressed only the leave-out elements and not the insertions, and of course the argument was distorted because of that. He made great play of the fact that one of my amendments would leave out the current provision for the Crown court to devolve the decision downwards. Of course I do not intend that there should not be devolution downwards. All my amendments are designed to create the circumstances in which breach of orders are first considered in a youth court or a magistrates court, and only those that are serious are referred to the Crown court. I thought that that was clear from what I said in my opening remarks.
As I said during his remarks, I found the comments of the hon. Member for Enfield, Southgate very persuasive. He argued the case extremely well—much better than the ministerial briefing on the subject. In some instances, there is some merit in getting people who are in breach of their orders back before the Crown court, but there is an administrative issue with such disposal in the first instance. His suggestion is one that we might explore at a later stage of the Bill. The Minister failed to respond cogently to my argument simply because he did not listen to it. I am sorry about that; it is unfortunate.
There was no reference at all in the Minister’s response to the capacity of the court to take no further action other than to issue guidance. I wonder why he did not respond to that amendment. That was the one for which I believe I had not only the engagement, but the support of the right hon. Member for Cardiff, South and Penarth. He recognises the fact that there are occasions when the bench, having heard all the circumstances, will wish to set boundaries, as he put it—that is entirely right—and so ensure that the offender knows exactly where he or she stands in respect of the order, but will not wish to take action beyond that. That is an important part of the court’s armoury in dealing with breaches. It allows for the judicial discretion of the court that we are all supposed to recognise, and enshrines it in the orders. I hope that, after today’s proceedings, the Minister will reflect on matters and consider a response.
The hon. Member for Leyton and Wanstead was spot on. When a young person has been subject to a rehabilitation order that lays down various requirements, which are tailored to his needs prevent him from reoffending, it would be wrong if those considerations went by the board if the person was taken into custody. Rather than simply hoping that the provisions of the order will be complied with by the state in respect of the young person in custody, it should be a duty on the Prison Service in such circumstances to comply with the original terms of the order inasmuch as they still apply to a young person in custody.
There is abundant evidence that in many places, provision is unlikely to be made, certainly in the case of older teenagers. Those aged 17 and 18 are not receiving the level of support in education and other matters that they ought to receive from the system. Before we discuss the Bill on Report, I shall consider whether it is possible to ensure that the subject of a rehabilitation order that is still relevant in a case of custody in breach forms part of a duty on the Prison Service. The hon. Gentleman made an important point.

Edward Garnier: I do not want to delay the closing of the hon. Gentleman’s argument, but there is a problem with lots of different publications. The Prison Service no longer seems to have immediate control over physical and mental health services within its estate, or over education. Such services are imported from local education authorities or other bodies. Although some people are employed by the Prison Service to teach or educate, it is a difficult in an organisational sense to impose a duty on the governor of the relevant institution if he does not employ those who are providing the teaching.
We need to work our way through the administrative problem. I applaud the hon. Gentleman for highlighting the issue. We will not solve it today, but I encourage the Government to think carefully about how we impose the duty on people who have no control over the providers of the service.

David Heath: The hon. and learned Gentleman has made an extraordinary and valid point. It is one that is of concern to me. I do not want to enter into a whole new debate, but mental health and general heath provision is extremely patchy. It is hard to persuade local PCTs that they have a duty to those in the prison estate in their area. Some do understand that, but others make less provision than is appropriate. I do not agree with the implication that matters should revert to the Prison Service for organisational reasons, because the service is not a health authority or an education authority. However, there needs to be better co-ordination between the Prison Service and the providers.
We have had a long and interesting debate. I do not intend to press the amendment to a Division, but the Minister and others have given us food for thought for amendments to be tabled on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1, as amended, agreed to.

Nicholas Winterton: I do not know whether hon. Members want to speak to clause 2.

Edward Garnier: As clause 2 merely brings schedule 2 into effect, I suggest that we discuss it when we reach the schedule, Sir Nicholas.

Clause 2 ordered to stand part of the Bill.

It being twenty-five minutes past Ten o’clock, The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.